Last week, we released the first episode of the latest season of our podcast, “Views on First: Speech & the Border.” The goal of this season is to explore some of the many ways that governments use the international border as a justification and pretext for censorship and surveillance. Issues at the intersection of speech and the border play a fundamental role in shaping our nation’s character—its past, its present, and its future. With the recent election of Donald Trump to a second term as president, that future seems all the more perilous for the millions of noncitizens who live in this country and the millions more who wish to travel here. The topics we discuss in this season of the podcast are important to consider under any presidential administration. But the looming threat of a second Trump presidency makes these conversations increasingly urgent and necessary. 

Trump has repeatedly made clear that hardline immigration policies are at the top of his list of priorities when he returns to office in January. Tom Homan—Trump’s pick for “border czar” and the face of his family separation policy from his first term—has vowed to “run the biggest deportation force this country has ever seen.” It won’t end at threats and rhetoric. If Trump’s first four years are any indication, he may once again seek to silence immigration activists through selective enforcement of deportation orders. Among those activists is Ravi Ragbir, whose story we shared in the first episode of the podcast. Trump might also double-down on draconian “extreme vetting” policies designed to screen and keep out visa applicants his administration deems undesirable. And if Trump makes good on his promise to deport student protesters on educational visas, it would diminish not just the exchange of ideas across our borders, but impoverish important public discourse and academic debate that occurs within our borders.

Given the significance of the issues we covered, I want to clarify and provide some additional context to a couple of points we made in that first episode, which addressed the history of ideological exclusion and deportation in the United States. I share these reflections with immense gratitude to Professor Ahilan Arulanantham for having spurred us to sharpen our thinking on these topics.

First, it is important to emphasize that key distinctions exist in how courts have addressed government attempts to exclude people seeking to enter the country, and attempts to deport people already living in the United States. United States ex rel. Turner v. Williams, a precedent discussed in the episode, is a case about ideological exclusion. To be sure, some of the considerations underlying the Supreme Court’s decision in Turner shed light on its jurisprudence around ideological deportation. But different rules apply in the two contexts. The Court made this clear in its 1945 decision in Bridges v. Wixon, which recognized the First Amendment rights of a lawful resident. Bridges rests on the understanding that noncitizens residing in the country and facing deportation have greater constitutional protections than noncitizens seeking to enter the country or those at the border facing exclusion. While the precise contours of this distinction between the constitutional rights of residents and those seeking admission remains contested, it is nonetheless crucial to contemporary discussions of speech and the border.

Second, the shape of the First Amendment, and its meaning, has been subject to significant contestation and transformation throughout its history. Indeed, the Court’s freedom of speech jurisprudence formally emerged only in the 1920s, and even then, largely in the influential concurring and dissenting opinions of Justices Oliver Wendell Holmes and Louis Brandeis. So, in 1904 when the Court decided Turner—the case involving English trades unionist John Turner’s exclusion from the country on the grounds that he was an anarchist—its understanding of the First Amendment bore little resemblance to how we see the First Amendment today. It provided the government much more leeway to restrict speech in the name of preserving order. Thus, perhaps the most accurate way to read Turner is that it acknowledged that the government may not exclude people for reasons prohibited by the First Amendment, but rejected Turner’s challenge because he had not raised an adequate free speech claim under then-prevailing (and embryonic) First Amendment doctrine. In any event, I do not want to leave listeners with the impression that Turner can fairly be understood to stand for the proposition that the First Amendment categorically does not apply to cases involving exclusion.

Third, I want to alert listeners to an important scholarly discourse on the origins and proper scope of the plenary power doctrine. The traditional view of the plenary power doctrine, as described in the podcast, suggests that courts do not apply the ordinary rules of constitutional adjudication in cases involving immigration, treating the doctrine as descended from the Supreme Court’s shameful Chinese exclusion cases. Under this framework, Congress and the president have expansive powers to dictate immigration policy, with the judiciary only able to provide limited supervision. Some scholars, most notably Professor Adam Cox, have rejected this account of the plenary power doctrine, and called to deemphasize the role of the Court’s 19th-century immigration decisions in shaping modern immigration law. Instead, Professor Cox argues that immigration exceptionalism does not have the historical roots often ascribed to it, but is a judicial invention with much more modern origins. This discussion could inform contemporary approaches to immigration law and policy—and when appeals to history and immigration exceptionalism should be privileged.